Terms of Trade
To the maximum extent permitted by law, all United States transactions between Orora Packaging Solutions /or any of its related entities or affiliates (“Orora”) and any customer (“Customer”) relating to the supply by Orora of any product or services are subject to the following Terms of Trade (the “Agreement””) unless otherwise agreed in writing. Orora and Customer may individually be referred to individually as a “Party” and collectively the “Parties”. The Parties hereby agree as follows:
WHEREAS, Orora is engaged in the sale, marketing and distribution of packaging, packaging equipment, industrial supplies and related materials and commodities.
WHEREAS, Customer desires to purchase Products (as defined below) and Services (as defined below) from Orora for use by Customer in the furtherance of conducting business.
WHEREAS, the parties are entering into this Agreement to regulate arrangements between them for the provision of such services and products pursuant to mutually approved Product Schedule (as defined below);
NOW THEREFORE, for and in consideration of the promises and the mutual covenants hereinafter contained, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed as follows:
1.1 “Custom Products” means those products, which are designed by Orora exclusively on behalf of Customer based upon specifications provide d by Customer.
1.2 “Inventory” means any Custom Products held by Orora on behalf of Customer based on forecasts or other mutually approved methods for meeting delivery dates.
1.3 “Products” means those products, which are distributed by Orora and sold to Customer. The Products to be sold by Orora to Customer are identified in the Product Schedule.
1.4 "Product Schedule" means, as applicable, the schedule attached hereto as an Appendix or any similar schedule subsequently established by the Parties under this Agreement, each as may be amended from time to time. Product Schedules established after the Effective Date will reference this Agreement and will become effective upon execution by both Parties.
1.5 “Services” means, collectively, the services t0 be performed by Orora pursuant to a mutually approved Product Schedule.
- Scope and Purchase Orders.
2.1 Scope. This Agreement will apply to all Products and Services purchased by Customer during the term unless the Parties expressly agree that this Agreement will not apply to a particular type of transaction in a separate written document signed by an officer of each Party. Subject to the terms and conditions of this Agreement, Customer agrees to purchase from Orora, and Orora agrees to sell to Customer, the various Products and provide the Services listed on separate sequentially numbered Product Schedules at the pricing set forth therein. Upon written acceptance by both parties, each Product Schedule will be attached hereto as exhibits and made part of this Agreement. Unless otherwise agreed in writing by the Parties, this Agreement shall govern Products procured by Customer from Orora in the categories specified herein. Except as otherwise provided herein, all Products shall be warehoused by Orora and delivered to the location(s) specified in a purchase order submitted by Customer to Orora. Unless Orora provides its written consent, for the Term of this Agreement it is the intent of the parties that Customer purchases all of its requirements for the Products listed on Appendix A from Orora.
2.2 Purchase Orders. Customer will submit a purchase order, which shall state the Services and or the Product number, size, quantity, applicable price and required dates for shipment of the Products ordered. All orders shall be submitted at least 5-7 days prior to the desired delivery date unless otherwise agreed to by the parties in writing. All orders shall be subject to the terms of this Agreement. Any terms and conditions of any order that are different from, in conflict with, inconsistent with, or in addition to the terms of this Agreement are null and void and shall have no force or effect.
- Term and Termination.
3.1 Term. The term of this Agreement shall be two (2) years from the Effective Date (the “Initial Term”), and will automatically renew for successive one (1) year terms (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides notice of termination ninety (90) days prior to the expiration of the then current Term, provided that the Agreement may be terminated earlier in accordance with the provisions herein.
3.2 Termination. This Agreement may be terminated:
- By either Party upon notice to the other given at least ninety (90) days prior to the expiration of the Term that the Agreement shall not be renewed.
- By either Party if the other Party:(i) breaches a material provision of this Agreement, or repeatedly breaches a non-material provision of this Agreement, and such breach remains uncured for a period of thirty (30) days following written notice of same by the non-defaulting Party, (ii) files a petition for bankruptcy, (iii) makes a general assignment for the benefit of creditors, (iv) suspends the operations of a substantial portion of its business, or (v) if a receiver is appointed on account of insolvency, then that Party shall be considered in default of this Agreement, and the non-defaulting Party shall have the right, upon written notice to the defaulting Party, to immediately terminate this Agreement.
3.3 Upon termination, Customer shall pay to Orora the full balance due of all undisputed outstanding invoices for Products shipped to Customer. In the event of termination of this Agreement for whatever reason, Customer shall be obligated to purchase all dedicated inventory Products then in Orora’s possession, or en route to Orora as a result of a previously submitted purchase order by Customer, at the then applicable prices. The remedies stated in this Section shall be in addition to all other remedies available under applicable law.
3.4 The termination, expiration or non-renewal of this Agreement shall not relieve either Party from any obligation that accrues pursuant to this Agreement before the effective date of the termination, expiration or non-renewal nor shall it release the Parties from any obligation, which may have been incurred as a result of operations conducted under this Agreement.
3.5 Except as a result of termination, expiration or non-renewal of this Agreement, neither Party shall be liable to the other party for injury to reputation or any damages for economic loss, loss (or anticipated loss) of business, sales, profits, earnings or income, including without limitation any damages in any way related to expenditures, investments, costs or commitments made or entered into in reliance of this Agreement or in any way related to the performance of this Agreement.
- Price and Price Adjustments.
4.1 Price. The price for each Product will be identified in the applicable Product Schedule subject to change in accordance with the price adjustment mechanism set forth in Section 4.2 below. The Purchase Price for each Product shall be exclusive of freight and insurance costs for which Customer is responsible and certain taxes assessed on the Purchase Prices for which Customer is responsible for herein. If a Product Schedule does not include pricing information, then the Products sold by Orora to Customer shall be at the prices quoted by Orora at the time the purchase order is received. All prices are expressed in US dollars.
4.2 Price Changes. The following price change mechanisms shall apply. In all such cases, Orora shall provide Buyer with no less than 30 days’ prior written notice (including by email) of such price changes.
- Price Change Mechanism By Category of Product Identification.
- Paper/ Chipboard/ Corrugated Category- RISI Price Watch
- Price Change Mechanism By Category of Product Identification.
Corrugated Movement: All grades for price increases or decreases will take effect in accordance with the corrugated price adjustment for linerboard movements published in RISI Pulp and Paper Week ("PPW"). Price adjustments are based on PPW's "Price Watch" using the East Open Market average of the market pricing for Kraft 42lb linerboard. Should the price of Kraft 42lb linerboard change by $20 per ton cumulative per quarter, all corrugated product prices will adjust and be effective on the first date of the month following the end of quarter. Price adjustments are based on a 2% change for every $10.00 per ton increase or decrease in PPW on a quarterly basis, Orora can provide a Quarterly Review based on business updates and price adjustments. Chipboard and Paper are subject to their independent grade changes and Supplier notifications by region. They are not included in Price Watch.
b. Resin/ All Poly Grades Category- CDI Chem Data Inc.
CDI (LLDPE Large Buyer Grade Hexene-Octene) or applicable grade will be used to determine the increase or decrease in Resin Category product prices. Any increases or decreases to pricing will be billed the first day of the month following the 6-month period of the calculated total change. (Example: for publication on the 23rd of June, price change would go into billing effect on all shipment made after August 1st -calculating the total change Jan-June.) CDI Chem Data changes apply to all film and foam-based products unless categorized as a Consumable.
c. Consumables- Facility/Warehouse/Janitorial/All Other Supplies.
For products not covered by a published industry index (for instance janitorial supplies, warehouse supplies and facility Supplies), Orora will provide price change notifications as their manufacturers provide notification of price changes, including a letter from the manufacturer substantiating such price change. In the case where there are letters from more than one manufacturer, Orora shall use the median price.
d. Other Market Changes/Costs.
For all other prices increases not covered above (for example, a price change based on market conditions and other costs such as an increase in wages, healthcare, transportations, energy rates, etc.) the price may be adjusted annually.
- Invoicing and Payment Procedures.
5.1 Orora shall submit invoices to Customer for the Products and Services supplied pursuant to this Agreement and Customer shall pay all such invoices within thirty days of the date of the invoice.
5.2 All payments will be made by check, wire or automated clearing house (ACH) and be sent to Orora at such address as Orora shall direct. Customer shall pay to Orora the amount of any state or local sales tax (except for Orora’s franchise taxes and taxes on Orora’s income) that results from the sale of Products, unless a correct and valid tax exemption certificate is furnished to Orora prior to Orora’s acceptance of the order.
5.3 Credit limits and terms shall be subject at all times to Orora’s credit policies and procedures, as amended from time to time. Orora reserves the right to reduce or eliminate credit offered to Customer, if Orora determines in its sole discretion that the credit risk is unacceptable. If credit terms are no longer available, Customer shall pay cash in advance for all purchases under this Agreement.
5.4 All undisputed late payments due under this Agreement will bear interest at the greater of the maximum amount chargeable by law or 1.5% per month. Customer shall pay all reasonable expenses incurred by Orora in enforcing any collection of fees and expenses or other rights under this Agreement including all expenses of any legal proceeding related thereto (including reasonable attorney fees). If Customer disputes any portion of any invoice, Customer must notify Orora in writing of the nature and the basis of the dispute. In the event that it is ultimately determined that the amount of the disputed payment under such disputed invoice provided by Orora was correct, any payment under such invoice that was not paid to Orora at the time specified will bear interest from the date such payment was originally due.
- Shipment and Nonconforming Products.
6.1 Shipment. All orders shall be shipped FOB Orora’s facility. All shipping costs shall be the responsibility of Customer, and shipments shall be sent via shipping company designated by Customer. Unless otherwise agreed to in writing, the parties acknowledge and agree that a shipment of Products may be over or under the quantity specified in a purchase order by up to 10% (ten percent). The Products shall be identified in the purchase order and risk of loss and title shall pass to Customer at the time shipping company takes possession of the Products. Until that time, risk of loss in and to such ordered Products shall remain with Orora. The frequency, timing, and other delivery requirements for the Products shall be as agreed to by Customer and Orora.
6.2 Nonconforming Product. If there is credible evidence that a Product or all or part of a Product shipment (i) is damaged or defective; or (ii) otherwise fails, in any material respect, to comply with the terms of this Agreement or the applicable purchase order (a “Nonconforming Product” or “Nonconforming Shipment”). Customer must provide notice to Orora of a Nonconforming Product or Nonconforming Shipment within fifteen (15) days from receipt of shipment to terminate such order or refuse, reject or revoke acceptance at Orora’s expense.
- Packaging, Labeling, Product Literature; Intellectual Property
7.1 Orora shall label and package the Products in accordance with Customers labeling and packaging specifications.
7.2 Brand names, trademarks, and trade names adopted by Customer in connection with the sale and promotion of the Products (“Customer IP”) shall be and shall remain the exclusive property of Customer during the term of this Agreement, and Orora shall not thereafter adopt or use any name similar to that utilized by Customer in connection with the sale and promotion of the Products. Orora shall have a limited license to apply Customer IP to the Products and to the packaging for the Products supplied to Customer hereunder, and for no other purposes. Customer hereby warrants and represents that it holds a valid license to the Customer IP covering the Products (and has the right to sublicense the Customer’s intellectual property to Orora. Customer further warrants and represents that its Customer IP does not knowingly infringe the intellectual property rights of any third party as of the Effective Date.
7.3 To the extent Orora is providing design services for Custom Products exclusively on behalf of Customer, such designs shall remain owned by Orora and cannot be transferred to Customer, in any manner, to be manufactured by a third party. The Parties agree that such transfer will be considered a breach of this Agreement.
- Returns; Inventory.
8.1 Returns. Custom Products cannot be returned. Except for Custom Products, Orora may accept returns of Products if in resalable condition and made within 30 days of original shipment. A restocking fee of 15% will be charged for these returns. For returns of special orders, Orora shall accept returns on a case-by-case basis. For Products returned to Orora, Orora shall issue credit memos to Customer in the following billing cycle.
8.2 Aged Product. Product will be considered aged at sixty (60) days (“Aged Product”). For all Aged Product, unless the Product has become aged due to no fault of Customer, Customer will pay for freight and a restock fee for returned Product to the manufacturer. While Orora will proactively work with Customer through monthly usage reviews and make reasonable effort to assist in returning or moving Aged Product, any and all Aged Product that cannot be sold, returned to the manufacturer or moved will be billed to the Customer and either shipped or destroyed at Customers discretion. Orora will notify Customer in advance of billing and shipping or destroying such Aged Product.
8.3 Product Stocking. Customer and Orora may agree to identify certain Products for stocking assistance wherein Orora will maintain a regular supply of such specified Product. Such Products requested by Customer for stocking will be identified in a separate Product Schedule-Stocking Agreement and subject to the additional conditions specified therein.
- Representations and Warranties.
9.1 Each Party represents, warrant and covenants on the Effective Date and at all times during the Term that:
- The Party is formed, registered, licensed and operating its business in compliance with the laws of the United States of America, its states and territories, and any districts, municipalities and other political subdivisions of the foregoing (“Applicable Laws”).
- The Party is operating its business in compliance with a commercially reasonable code of ethics adopted by such Party.
- The Party may enter into and perform its obligations under this Agreement without being in conflict with, or in breach of, any other agreement of the Party.
- The Party is solvent, is capable of paying its debts as and when they become due and is paying its debts as and when due.
- It has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly and validly executed and delivered by Customer, and constitutes a valid and binding obligation of Customer, enforceable against Customer in accordance with its terms.
9.2 Customer warrants that it will not utilize Orora’s designs for any purpose outside of this Agreement without Orora’s written consent.
9.3 Orora warrants that Orora is the legal and rightful owner of the Products or that it is legally licensed and/or authorized to sell and/or distribute the Products.
9.4 Orora warrants that the Products shall be free from defects in materials and workmanship. If samples of Products have previously been submitted to and approved by Customer, Orora warrants that the Products will conform in quality with said samples. This warranty is until the Products are delivered to Customer’s location. Due to nature of certain Products and once delivered Orora has no control over how the Products are handled, stored or transported, accordingly Customer must immediately inspect the Products on delivery and notify Orora of any defects in the Products. A failure to inspect and inform Orora in a timely manner will void this warranty. In the event of a defect or failure to conform with this warranty not caused by Customer, Orora shall promptly replace the Product without charge to the Customer. Customer shall retain all allegedly defective Products covered by Orora’s warranty for a period not to exceed sixty (60) days from the date of notice to Orora of such defect and make it available for inspection by a representative of Orora. All defective Products replaced under warranty shall either be returned to Orora or disposed of in accordance with the instructions of Orora. All costs related to the shipment and handling of such defective Products shall be incurred by Orora.
9.5 THE WARRANTIES EXPRESSLY STATED IN THIS SECTION 9 SUPERSEDE ALL INCONSISTENT PROVISIONS OF ANY AND ALL PURCHASE ORDERS, INVOICES, ACKNOWLEDGMENTS, OR OTHER WRITINGS OR STATEMENTS, WRITTEN OR OTHERWISE. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 9, ORORA DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AND PRODUCT LIABILITY, SPECIFICALLY INCLUDING WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
10.1 Each Party agrees that it will (i) maintain all Confidential Information (as defined below) which is disclosed to or otherwise observed by it in strict confidence and take all reasonable precautions to protect such Confidential Information, (ii) not divulge any Confidential Information to any third-party except as required to fulfill its obligations under this Agreement, and (iii) not make or authorize any use of any Confidential Information other than for the performance of this Agreement, except with the prior written consent of the disclosing Party or as required by law. Without prejudice to Section 8 Ownership Rights herein, all rights in and title to the Confidential Information remain in the disclosing Party. For purposes hereof, “Confidential Information” means all information disclosed through any means of communication or by personal observation by or on behalf of the disclosing Party to or for the benefit of the other Party that relates to the disclosing Party’s products, new products, product designs, systems and services, fees, suppliers, projects, productions (including information regarding talent and other persons involved in such productions), research and development, intellectual properties, trade secrets, technical know-how, policies or practices (and all creative, business and technical information relating thereto), and any other matter that the other Party is advised or has reason to know is the confidential, trade secret or proprietary information of the disclosing Party. Confidential Information also includes the existence and terms of this Agreement, and information regarding Buyer’s customers, including, without limitation, business names, business addresses, and contact information including the identity of any contact person employed by any customer. Confidential Information does not include data, materials or information that (i) was or becomes generally available to the public other than as a result of a disclosure by the receiving Party or its directors, officers, employees, agents, or advisors, or (ii) was or becomes available to a Party on a non-confidential basis from a source that has the right to disclose the information, or (iii) was in the possession of the receiving Party before being furnished to the receiving Party by or on behalf of the disclosing Party, or (iv) that is or was acquired or developed independently by or for the receiving Party, without use of or reference to any Confidential Information of the disclosing Party and without violation of any obligation contained herein.
10.2 Upon the expiration or termination of this Agreement, any and all Confidential Information possessed in tangible form by a receiving Party and belonging to the disclosing Party, shall, upon written request, be immediately returned to the disclosing Party (or destroyed if so requested) and not retained by the receiving Party; provided however that a party may retain one copy of any Confidential Information in an appropriately secure location, which by applicable laws it must retain, for so long as such applicable laws require such retention but thereafter shall dispose of such retained Confidential Information in accordance with applicable laws or this Section.
10.3 The receiving Party may disclose Confidential Information if and to the extent that such disclosure is required by applicable law, regulation, or court order, provided that the receiving Party (i) uses reasonable efforts, at the disclosing Party’s expense, to limit the disclosure by means of a protective order or a request for confidential treatment and (ii) provides the disclosing Party a reasonable opportunity to review, if permitted, the disclosure before it is made and to interpose its own objection to the disclosure.
10.4 Each Party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party is entitled to seek equitable relief, including an injunction to prevent the use and/or disclosure of its Confidential Information. If a Party disputes whether information is Confidential Information, such Party agrees to an injunction prohibiting disclosure pending resolution of the dispute as provided in this Agreement.
- Indemnification and Disclaimer of Liability.
11.1 Orora shall indemnify, defend and hold Customer and its directors, officers, employees, agents, successors and assigns harmless from and against any and all damages, liabilities, losses, obligations and judgments arising out of or in connection with: (i) any claim alleging that the design (to the extent the Products are designed by Orora) of the Products constitutes a misappropriation or infringement of any patent, copyright, trademark, trade secret, or other proprietary rights of any third party; (ii) any material breach by Orora of any of its representations, warranties or covenants contained in this Agreement;(iii) any claim for bodily injury (including death), property damage, or both, resulting from a Product which is defective in materials or workmanship; and (iv) the negligence or willful misconduct of Orora. The foregoing obligations do not apply with respect to portions or components of the Product (i) not supplied by Orora, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Customer, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Products is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Products are held by a court of competent jurisdiction to be or are believed by Orora to be infringing, Orora may, at its option and expense (a) replace or modify the Product to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Product, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
11.2 Customer shall indemnify, defend and hold Orora and its directors, officers, employees, agents, successors and assigns harmless from and against any and all damages, liabilities, losses, obligations and judgments arising out of or in connection with: (i) any claim alleging that the design (to the extent the Products are designed by Customer) of the Products constitutes a misappropriation or infringement of any patent, copyright, trademark, or trade secret, or any other proprietary rights of any third party; (ii) any breach by Customer of any of its representations, warranties or covenants contained in this Agreement; and (iii) and, to the extent Products specifications have been provided by Customer; (iii) any claim for bodily injury (including death), property damage, or both, resulting from a Product which is defective in design; or (iv) the negligence or willful misconduct of Customer.
11.3 With respect to the indemnification obligations set forth in this Section 9, the party seeking indemnification (“Indemnified Party”) agrees to give the indemnifying party (“Indemnitor”) timely notice in writing of each such claim, suit, or proceeding, and to give control of the defense thereof to Indemnitor. The Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense of any such claim, suit or proceeding through counsel of its own choosing. In the event the Indemnitor fails after notice, to adequately and/or timely defend or settle any such claim suit, or proceeding, the Indemnified Party shall have the right, but not the obligation, of defending or settling any such claim, suit, or proceeding; and, in such event, the Indemnitor shall indemnify the Indemnified Party for all damages and settlements awarded or resulting therefrom.
11.4 The covenants contained in this Section shall survive the termination of this Agreement regardless of the reason for such termination.
11.5 TO THE FULLEST EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOST DATA, OR LOSS OF USE) OR ATTORNEYS’ FEES OR COSTS OF THE OTHER ARISING OUT OF ANY SERVICE PROVIDED UNDER THIS AGREEMENT, ANY PERFORMANCE OF, OR FAILURE TO PERFORM, THIS AGREEMENT OR ANY CONDUCT IN FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE ABOVE, THIS LIMITATION WILL NOT EXCLUDE A PARTY’S LIABILITY FOR DAMAGES ARISING FROM WRONGFUL DISCLOSURE OF CONFIDENTIAL INFORMATION OR WILLFUL INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
- Notices. All notices, requests, or other communication given under this Agreement to the Parties shall be in writing, shall be effective for all purposes upon receipt, and shall be delivered by (i) personal delivery, (ii) delivery by messenger, express or air courier, (iii) delivery by registered or certified mail, postage prepaid, return receipt requested, or (iv) transmittal by electronically confirmed telecopier or facsimile:
|If to Orora:||Orora Packaging Solutions|
|Attn: Legal Department|
|6600 Valley View Street|
|Buena Park, CA 90620|
If to Customer: The address of their registered agent or the published address of their primary place of business.
- Governing Law; Dispute Resolution.
13.1 Governing Law. This Agreement, and the rights and obligations of the Parties hereto, will be governed by the laws of the State of California, USA, without regard to its conflicts of law doctrine.
13.2 Dispute Resolution. The Parties hereto shall initially attempt to resolve all claims, disputes or controversies arising under, out of or in connection with this Agreement by conducting good faith negotiations amongst themselves. If the Parties hereto are unable to resolve the matter following good faith negotiations, the matter shall thereafter be resolved by binding arbitration and each Party hereto hereby waives any right it may otherwise have to the resolution of such matter by any means other than binding arbitration pursuant to this Section. Any arbitration hereunder shall be conducted in the English language under the commercial arbitration rules of the American Arbitration Association (“AAA”). Any such arbitration shall be conducted in Orange County, California by a single arbitrator agreed to by the Parties. The arbitrator shall have the authority to grant specific performance. Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement. Each Party will pay its own attorney’s fees and costs and one-half of the costs of the AAA and the Arbitrator. The arbitrator will resolve any controversy over whether a dispute is an arbitrable dispute or as to the interpretation or enforceability of this Agreement with respect to arbitration.
- Non-waiver of Rights. The failure of either Party hereto to enforce any of the provisions of the Agreement, any rights with respect hereto, or the failure to exercise any elections provided for herein shall in no way be considered to be a waiver of such provisions, rights, or elections or in any way affect the validity of the Agreement. The failure of either Party to exercise any of said provisions, rights or elections shall not preclude or prejudice such party from later enforcing or exercising the same or any other provision, right or election which it may have under this Agreement.
- Invalid Provisions. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
- Integration/Modification. With respect to its subject matter, this Agreement constitutes the entire agreement between the parties and shall replace and supersede all prior and contemporaneous agreements, negotiations, and representations between the parties, whether oral or written. This Agreement shall only be modified or changed by a written amendment signed by both Parties. The Parties agree that the terms and conditions stated on any purchase orders shall be superseded by the terms and conditions stated in this Agreement and shall be of no force and effect.
- Assignment. This Agreement shall be binding upon and inure to the benefit of each Party and its successors and assigns, provided that neither Party has the right to assign or otherwise transfer the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing either Party may assign this Agreement in connection with any merger, reorganization or sale of substantially all of that Party’s assets or other change of control transaction without any consent from the other Party.
- Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform under this Agreement, other than the payment of fees and expenses, if the delay or failure to perform is without the fault or negligence of the Party claiming excusable delay and is due to any foreign or domestic embargoes, seizures, acts of God, pandemics, insurrections, wars and/or continuance of war, acts of terror or terrorism, the adoption or enactment of any law, ordinance, regulation, ruling or order, inability to secure materials or transportation, acts of third parties, fires, floods, explosions, strikes or other accidents or contingencies beyond its control. In the event of the occurrence of an event of force majeure, the party affected shall give prompt notice to the other and shall use all reasonable efforts to alleviate or minimize such event and resume full performance at the earliest possible date.
- Third-Party Beneficiaries. Orora and Customer intend that this Agreement shall not benefit or create any right or cause of action in, against, or on behalf of any person or entity other than the parties, except those specifically named herein.
- Non-circumvention. Customer agrees that all third parties introduced to them by Orora represent significant efforts and working relationships that are unique to, and part of, the work product and intellectual capital of Orora. Therefore, without the prior specific written consent of Orora, during the term of this Agreement and for 1 year thereafter, Customer agrees to refrain from conducting direct or indirect business dealings of any kind with any third party so introduced by Orora, with the exception of third parties with which Customer has previously had a documented formal business relationship prior to the Effective Date of this Agreement.
- Survival. Any termination will not affect any Purchase Order issued before the effective date of the termination. Termination of this Agreement does not terminate the obligation of Buyer to pay for conforming goods received by Buyer before the termination becomes effective and does not terminate the obligations of the Parties contained in Sections 5-7, 10-17 and 20-22 of this Agreement, and any right or obligation of the Parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement.
- Miscellaneous. “Including” means including without limitation. This Agreement may be executed by electronic transmission and in counterparts, each deemed an original and together constituting one instrument. This Agreement may not be altered or amended except by written instrument duly executed by the Parties. Headings are for convenience only with no effect. This Agreement sets forth the entire understanding of the Parties with respect to the subject matter herein and supersedes all prior agreements representations and proposals, oral or written, between the Parties with respect to this subject matter. The provisions of Appendix attached hereto prevail in the event of a conflict with the provisions of the main body of this Agreement. The Parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties hereto and no presumption or burden of proof shall arise favoring or disfavoring either Party by virtue of the authorship of any of the provisions of this Agreement.
Last updated December 5, 2022